News

Can I represent myself in the Family Court?

There is an entitlement in every court to represent yourself in any hearing and there are a number of protections for self-represented litigants, particularly in the Family Court and Federal Circuit Court, to prevent undue prejudice to your matter. Representing yourself can be difficult and time-consuming, particularly where you juggling work commitments or looking after children.

The Family Court of Australia publishes a number of resources to assist those who represent themselves. Issues covered include the filing of documents, court dress and conduct, procedural matters and even provides access to computers and the internet for those who might not have access to these at home.

Duty solicitors from Legal Aid may be able to provide some assistance to self-represented persons, and the while court staff cannot provide legal advice they can provide information regarding deadlines, filing procedure and can provide do-it-yourself kits for certain important forms and applications.

It can be very difficult for people undergoing a separation or dealing with property settlements and children’s issues to approach their own case with the degree of objectivity that is often required to be able to achieve the best result for their circumstances. An experienced lawyers can assist in providing advice and guidance.

Culshaw Miller Lawyers can provide anything from one off advice to ongoing representation according to your needs. Call us today on (08) 9488 1300.

Resources:

Family Court of Western Australia Handbook for Self-Represented Litigants

Legal Aid WA: What we do – Family Law

You can now apply for a Restraining Order online – 12 May 2020

Online Applications for Restraining Orders have now been introduced in Western Australia.

“People seeking the protection of restraining orders have previously been required to visit a court registry to apply. Now it can be done online through registered legal services which provide family violence assistance.

These include Legal Aid WA, Aboriginal Family Law Services and community legal centres. Anybody can contact these agencies by phone, or in person, and be assisted with the lodgement of their restraining order application. People can still go directly to a court to lodge an application.

After the application has been lodged, the applicant will be given a time to attend a court hearing to seek an interim order.”

Media Statement: Victims of violence able to apply for restraining orders online

Resources:

Legal Aid WA

Aboriginal Legal Service WA

I’ve been served with a Subpoena. What do I do?

What is a subpoena?

A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on you.

Do I have to comply with it?

Yes, unless it was not served on you correctly. If you have any concerns about the service of the subpoena you should contact a lawyer to discuss the matter. There are very serious consequences if you do not comply with the subpoena, including the Court issuing a warrant for your arrest or ordering you to pay any costs caused by your non-compliance. The court may also find you guilty of contempt of court.

How do I comply?

If the subpoena is to give evidence, check the date, time and location that you are required to attend. The party serving the subpoena must also provide you with reasonable conduct money to cover any travel expenses, accommodation, meals etc. If they have not you can contact the party issuing the subpoena and request the conduct money.

If the subpoena is for the production of documents you can either provide the originals or copies of the documents. Read the subpoena carefully, it will tell you when and where to produce the documents. The documents get sent to the court, not the other party. Again the party issuing the subpoena should provide you with reasonable conduct money to produce the documents.

The information they have requested is sensitive and I am reluctant to produce it. What do I do?

If you have concerns about the nature of the material that the other party has requested, because it doesn’t seem relevant, is privileged or somehow else sensitive, then you need to get independent legal advice as soon as possible. There are a number of legal grounds that you can object to the subpoena, but you have to let all parties know with adequate time. Arguing against a subpoena involves complex areas of law, so it is wise to have a lawyer handle this side of things for you.

Receiving a Subpoena from the Family Courts can be intimidating if you are not familiar with the process, or have real reservations about what they are seeking you to produce. Culshaw Miller Lawyers can guide you through the process and discuss your options at an initial consultation.

Am I entitled to an equal split of assets after separating?

Following a separation, many clients will come to a family lawyer for advice as to a property settlement believing that the property will be split straight down the middle, that is, a 50/50 split.  They may otherwise assume that a 50/50 split is the starting point for negotiations as to a final property settlement.

Calculating a division of assets according to the law can be far more complex than people believe.

Firstly, the pool of assets and liabilities must be ascertained.  This includes correctly identifying and valuing the assets and liabilities of the relationship.  The net pool of property and its value is usually considered at the date of property settlement, even though this may be some months or even years after separation.  This process can be particularly intricate where there are business interests, self-managed superannuation funds, family trusts and can be frustrated by a parties’ non-disclosure or deceit.

Secondly, the contributions made by each party to the acquisition and maintenance of those assets are to be considered  and include:

1. a parties’ direct and indirect financial contributions, such as property owned at the commencement of the relationship or property received as a gift,
2. a parties’ direct and indirect non-financial contributions, such as unpaid work undertaken to property to improve its’ value;
3. a parties’ contributions to the welfare of the family, including those made in the capacity of homemaker or parent.

Thirdly, the calculation must consider the future needs of each party in so far as they are relevant.  Such considerations include the age, health and future earning capacity of each party, and whether either parent is the primary carer of the children of the relationship.

Finally, the Court must consider whether it is “just and equitable.

As you can see, a 50/50 split is a common misconception.

Recent Cases: Obligations of trustees; Is the trustee doing right by me?

What are the legal obligations of trustees when exercising discretion pursuant to a trust deed? Recent Victorian Case law sets out those obligations.

The Court of Appeal in Victoria has recently handed down a decision confirming the obligations of trustees of a SMSF (and trustees generally) when exercising a discretion under the trust deed – Wareham v Marsella [2020] VSCA 92.

The case involved a dispute between the husband of the deceased, Mr Marsella, and the deceased’s daughter and her husband, Mr and Mrs Wareham, who were the trustees of the deceased’s SMSF.

Following the death of the deceased, the Warehams made a decision to pay all the superannuation death benefits to Mrs Wareham.

One of the central issues in the case was the obligations upon trustees when exercising an absolute and unfettered discretion, such as making a determination as to who is to receive superannuation death benefits.

Referring to the case of Karger v Paul, and cases which followed, the Court confirmed that when exercising a discretion the trustee must:

• Act in good faith;
• Act upon a real and genuine consideration of the interests of the dependants; and
• Act in accordance with the purposes for which the discretion was conferred.

If those essential factors are not present, then it cannot be said that there has been a proper exercise of the discretion conferred upon the trustee.

The Court of Appeal upheld the Trial Judge’s finding that the trustees had failed to give real and genuine consideration of the interests of the dependants of the deceased including Mr Marsella, as well as the removal of the Warehams as trustees of the fund.

The key takeaway from the case is the need for trustees to obtain specialist legal advice before making a death benefit payment, in particular as to who are the dependants of the deceased and their personal circumstances when exercising their discretion.

Should you have any enquiries regarding the obligations of a Trustee, please do not hesitate to contact our team at Culshaw Miller Lawyers.

Estate Planning: “I don’t need a Will.. or Do I?” Common Misconceptions

Any person over the age of 18 years and with legal capacity can make a Will and Enduring Power of Attorney. Unfortunately, it is estimated that between one third to one half of the population dies without a valid Will in place.

In addition, many people suffer an illness or become mentally incapacitated at some point in their lives with no clear direction as to how their affairs should be managed.

The consequences of failing to have the right documents in place can be devastating for families and can introduce complexities, costs and delay that are best avoided at a stressful time.

Below are some of the common myths about Wills and estate planning:

I don’t have any assets, just debts. Why do I need a Will?

• Although you may have significant debts or perhaps little equity in your home, most people have superannuation and/or life insurance that will be payable on death. These assets can be protected so that they are not used to pay debts but can be used to directly benefit loved ones.
• It is not the case that assets held in your sole name will automatically revert to your spouse. There are limits under the Administration Act which dictate which family members receive a share and how much.
• If you don’t have a Will, more than one person may be eligible to administer your estate. That means there may be arguments from the beginning as to who should be in control.
• Delays can be costly if there are ongoing liabilities such as mortgages, loans or credit cards to be paid with no one authorised to do this.
• If you have young children or grandchildren, at law they can inherit their share at 18. A Will enables you to defer this age to 21 or 25 while allowing the Executor to pay for their education maintenance and support in the meantime.

My finances aren’t complicated…my partner/spouse can just deal with them

• Unfortunately that is not the case. A spouse or partner does not have an automatic right to administer your financial affairs if you lose legal capacity, even for joint assets
• If you are unable to make financial decisions for yourself because of injury or illness, someone must be appointed to make these decisions for you
• An Enduring Power of Attorney allows you to appoint your spouse or partner or another trusted person to manage your affairs for your benefit

What happens if I don’t have a plan?

• If you do not have a Will at the time of your death, your estate will be distributed pursuant to section 14 of the Administration Act. The limits in the Act have not been changed for about 30 years.
• For married or de facto couples, the Act provides for a spouse to receive $50,000 plus a third of the balance of the estate. Children receive the other two thirds of the balance of the estate
• For married, de facto or single people without children, your parents and siblings will receive a share of your estate, regardless of the status of your relationship with them
• If you do not have an Enduring Power of Attorney in place and you lose mental capacity, someone will have to make an application to the State Administrative Tribunal to appoint an administrator for you. If there is a dispute as to who should be your administrator, the Public Trustee may be appointed to manage your affairs

• If you hold business or trust interests, not having an Enduring Power of Attorney or a valid Will can leave your business or trust in limbo until the State Administrative Tribunal or the Supreme Court appoint a legal representative for you

What if my family or financial situations change?

• We tailor our clients’ documents to their needs and also to maximise flexibility if circumstances change
• If key people such as your Executors or beneficiaries pass away before you, or you no longer wish them to act, you can contact us and we can update your documents
• If you marry or divorce it is crucial that you update your Will as both of these changes will automatically revoke an existing Will (in the case of divorce if it occurred on or after 9 February 2008) unless a specific intention to the contrary is included in the Will

How can we help you?

• You can request an Estate Planning instruction form from our Estate Planning lawyers by calling 9488 1300 or  emailing us:
  • Michaela Speering michaela.speering@culshawmiller.com.au
  • Ross Mendonca ross.mendonca@culshawmiller.com.au
  • Darren Miller darren.miller@culshawmiller.com.au
• We have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
• We can meet with you through online facilities, or by telephone to go through your plan
• We can prepare the documents, arrange for you to sign  and store the originals in safe custody for you

Please call us on 9488 1300 or via www.culshawmiller.com.au to discuss your needs and how we can best assist you

COVID-19: You can still make your Will social distancing!

You can still make your Will social distancing!

The onset of the COVID-19 crisis has changed many aspects of daily life and that change has happened quickly.

There are some things that remain the same.

The laws in relation to estate planning and deceased estates has not changed.

Your ability to create and control your estate plan has not changed.

Our Estate Planning Lawyers can advise and assist with all aspects of:

• Wills
• Enduring Powers of Attorney
• Enduring Powers of Guardianship
• Applications for Probate and Grants of Letters of Administration
• Deceased estate administration
• Disputed estate advice and representation
• Family Provision Act claims

We are able to take your instructions, provide advice and prepare documents for you in the same way that we always have, within the restrictions of social distancing and utilising the range of technologies available to us.

If we can assist you, please contact one of our Estate Planning lawyers by calling 9488 1300 or  emailing us:

• • Michaela Speering michaela.speering@culshawmiller.com.au
  • Ross Mendonca ross.mendonca@culshawmiller.com.au
  • Darren Miller darren.miller@culshawmiller.com.au
• For estate planning enquiries we also have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
• We can meet with you through online facilities, or by telephone to go through your plan
• We can prepare the documents, arrange for you to sign  and store originals documents in safe custody for you

Please call us on 9488 1300 or contact us via www.culshawmiller.com.au to discuss your needs and how we can best assist you

COVID-19: Why now is the best time for your estate plan

With so much change happening so quickly, it is easy to feel anxious and overwhelmed.

Thinking about death and legal incapacity can be daunting. The truth is that we never know what is around the corner and what we may be faced with from one day to the next. There may come a time when the tough decisions need to be made.

More than one person has said to me in the last few weeks, “I don’t want to overreact, but can you prepare my Will?”

The good news is that there are things you can do and, with the right advice and documents, you can take comfort in knowing that if the worst happens, there is a plan in place for your family.

There are three main documents which comprise an effective estate plan:

• A Will
• An enduring power of attorney
• An enduring power of guardianship

A Will

Your Will is your expression of how you want your estate to be distributed in the event of your death. The critical issues to consider are:

• The Executors: Who do you want to be in control of your estate, to manage your assets and hold funds in trust for beneficiaries?
• Guardians of minor children: In the unfortunate event that both parents died before the youngest child is 18, who would make parenting decisions for your kids?
• Are there any family members who are dependent on you: Aside from your children are there other members of the family who rely on you for financial support?
• Distribution of your estate: Who would you like to benefit from your estate? Are there family members who require more financial support for education or due to a disability? Is there a beneficiary who requires some protection around their inheritance?

Enduring Power of Attorney

• This document allows you to appoint a trusted person to make decisions on your behalf relating to your property and finances
• You can choose whether to appoint your attorney to act immediately or in the event you lose legal capacity

Enduring Power of Guardianship

• This document allows you to nominate a person to make health, welfare and lifestyle decisions for you in the event that you are unable to make them yourself
• Under the Guardianship and Administration Act, your spouse and other close family can make medical treatment decisions for you but the EPG goes beyond issues of medical treatment and includes decisions such as where you will live and with whom you will associate
• An EPG ensures you have a trusted person in place to make these decisions on your behalf if you are no longer capable of making them

How can we help you?

• You can request an Estate Planning instruction form from our Estate Planning lawyers by calling 9488 1300 or  emailing us:
  • Michaela Speering michaela.speering@culshawmiller.com.au
  • Ross Mendonca ross.mendonca@culshawmiller.com.au
  • Darren Miller darren.miller@culshawmiller.com.au

• We have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
• We can meet with you through online facilities, or by telephone to go through your plan
• We can prepare the documents, arrange for you to sign  and store the originals in safe custody for you

Please call us on 9488 1300 or via www.culshawmiller.com.au to discuss your needs and how we can best assist you

There is much we cannot control in the current environment but a good estate plan will give you some peace of mind.

The Other Parent Is Making Allegations Of Drug Use – Will there be Drug Testing at Family Court?

In children’s matters, the Family Court has the power to make parties to the proceedings undertake drug testing through independent testing agencies.

Drug testing can be ordered to be conducted by urinalysis testing (the testing of urine for drugs) or through hair follicle testing (the testing of hair strands).

In circumstances where there are allegations of long term drug use, hair follicle testing is preferred to determine whether there is ongoing serious drug use. This can give up to three months of history.

Drug testing is usually ordered to be in accordance with particular standards so there is certainty regarding testing procedures and the agency providing the tests.

Applying for orders for drug testing

When parties make their Applications to the Court, they may request interim orders (orders to be made as soon as possible) for a party to undertake drug testing.

The request must be supported by evidence from the party requesting the testing, usually on the basis of their observations and experience provided by way of an Affidavit (a sworn statement of truth) to the Court.

Drug testing can be ordered on a reciprocal basis depending on the allegations and evidence and you may choose to consent if you are not using drugs or wish for evidence of mutual drug use to be available to the Court.

A positive drug test of itself does not mean that you will not be able to spend time with your children. In some circumstances, supervised time can still occur while any drug issues are being addressed.

The Court can recommend parties undergo specific programs and show improvement before progressing time. In more serious circumstances, time will not be allowed immediately but the parent using drugs may be directed to appropriate programs to assist them.

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Family Law Reform Updated for the Future

On 11 April 2019, the Australian Law Reform Commission (ALRC) released its report entitled ‘Family Law for the Future: An Inquiry into the Family Law System’.

The Report is a culmination of work conducted by the ALRC following a direction of the former Attorney General George Brandis QC to refer the ALRC to make inquiry and provide report into necessary or desirable reform of the current System, “paving the way for long term fundamental reform to better meet the needs of modern Australian families.”

The recommendations

The Report makes 60 recommendations, ranging from a presumption of equal property contributions to more controversially, establishing state Family Courts in other Australian jurisdictions to better synthesize jurisdiction issues such as children in state care.

The ALRC summary of the Report’s broad recommendations are:

1. Closing the jurisdictional gap – Stop children falling through the gaps between the federal family law courts, the state and territory child protection systems and the state and territory responses to family violence. Family law disputes returned to the states and territories and the federal family courts eventually abolished.
2. Children’s orders – Simplify the factors to be considered when determining living arrangements that promote a child’s best interests. Remove mandatory consideration of particular living arrangements.
3. Stricter case management – Clearer consequences for couples and their advisors if they don’t seek to resolve disputes as quickly, inexpensively, and efficiently as possible, and with the least acrimony.
4. Compliance with children’s orders – Improve understanding of orders through greater engagement with family consultants and place limits on interim appeals.
5. Simpler property division – Include a starting position that separated couples made equal contributions during the relationship.
6. Encourage amicable dispute resolution – Increase the proportion of family law matters that are dealt with through alternatives such as FDR (Family Dispute Resolution) and LADR (Legally Assisted Dispute Resolution).
7. Legislative simplification – Redraft the Family Law Act to make it easier to understand the law.

More reading

The above recommendations are from the brochure Family Law for the Future ALRC Recommendations: https://www.alrc.gov.au/sites/default/files/alrc_recommendation_brochure_final.pdf

The Full Report is available at: https://www.alrc.gov.au/sites/default/files/alrc_report_135.pdf